Could Abortion Opponents’ Latest Tactic Inadvertently Protect Roe?

Last week, the House voted to pass the “Pain-Capable Unborn Child Protection Act,” a bill that would ban abortions after 20 weeks’ conception—also known as 22 weeks after last menstrual period (the traditional dating of a pregnancy), or 22 weeks’ gestation. Should this vote become law, the ban would allow no exception if the fetus has a fatal anomaly. Furthermore, the ban contains so many technicalities regarding how the procedure must be performed in case of sexual assault, or if the pregnant person’s life is endangered, that it wouldn’t be an “abortion” at all, but an extremely premature delivery of a live fetus via C-section or induced labor. To support their efforts, many anti-abortion politicians and activists referenced a just-released report that argued that 22-week gestation fetuses are more likely than ever to be able to survive if they are given adequate medical attention at birth. Based on this new evidence, abortion opponents argue, 22 weeks should actually be considered the new point of viability, rather than the current 24-week assumption.

I agree. Let’s do it.

According to the New York Times, the new study—released by the New England Journal of Medicine—detailed that “a tiny minority of babies born at 22 weeks who were medically treated survived with few health problems, although the vast majority died or suffered serious health issues.” The news, frankly, isn’t very surprising to those who follow reproductive care. Micro-preemies are generally far more likely to do well today then they were in the 1970s when the Roe v. Wade ruling was handed down, mostly due to continuing medical advances and changes in newborn care. While more infants born very prematurely are now growing up without severe chronic medical issues, there’s still a point in which fetuses cannot survive outside the womb because of the fact that immature lungs do not have the proper surfactant (lubrication) to allow them to expand and contract. Steroids can be injected to hurry the maturation, but there is a reason that no baby has been born at 21 weeks and survived.

The study itself reports that very few of the babies born in the 22- to 23-week gestation range make it, either. Still, it may be in the best interest of those who support reproductive rights to agree to a new line of viability. Declaring 22-week fetuses viable addresses exactly how abortion opponents intend to use the so-called “fetal pain” abortion bans to overturn Roe.

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Currently, because viability is considered to be somewhere in the 24-week range, a 22-week gestation “fetal pain” ban, like the one passed by the House last week, is considered a pre-viability abortion ban. That is a deliberate maneuver. The strategy behind the ban is to offer the Supreme Court a new line to cut off legal abortion, arguing that if a fetus can allegedly feel pain, it should be protected, and that this experience of pain actually trumps viability. It is also an argument that anti-abortion groups are convinced that at least five of the sitting judges will support—all of the four conservative justices, and a swing vote in Justice Anthony Kennedy.

If any 22-week gestation fetal pain ban does make it to the Supreme Court, the justices will be forced to make a decision: uphold the current precedent, which states that it is unconstitutional to have an outright ban on all abortion prior to viability, or discard the viability standard in favor of claims that a fetus feels pain thereby disallowing an abortion. If the court agrees to discard viability in favor of potential pain, abortion opponents will then introduce new bans at 14 weeks or 8 weeks, claiming a fetus or embryo can feel pain then, too, essentially rolling legal abortion back until it is mostly gone.

But what if viability were instead agreed to be at 22 weeks gestation, as this study argues could be possible? If that occurs, then a “20-week fetal pain” ban is no longer an unconstitutional “pre-viability” ban. Instead, it becomes a post-viability one. The ban could co-exist with Roe, without the “20-week” ban setting a new precedent that would override it. That would also remove the possibility of new, more restrictive, earlier gestation bans being introduced across the country.

In other words, it would take the anti-abortion “incremental strategy” to roll gestational limits back week by week out at the knees. And for a Supreme Court with a majority that don’t appear to be in any sort of hurry to overturn the precedent set by Roe, that’s an opportunity they may be very grateful to receive.

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Allowing a 20-week post-fertilization “fetal pain” ban to be considered constitutional would be a little risky, but likely would do very little to change the legal abortion landscape across the country because almost all of the states that currently have the bans already have them in effect. And a majority of them don’t even perform abortions that late in gestation, anyway. Those states that are more likely to perform the procedure at that point have legislatures that are less likely to propose or sign a later abortion ban into law. Only a federal ban would have major impact, and that requires the unlikely—and terrifying—scenario of the GOP holding the House, Senate, and the White House all at the same time.

Redefining “viability” is already a key part of the anti-abortion strategy even apart from this ban. Already in North Dakota, legal counsel defending the state’s ban on abortion at the point in which a heartbeat can be detected argue that viability can be assigned from the point of conception due to the fact that embryos can survive indefinitely outside of the womb. Other activists have clouded the term “viability” by using it to refer to any pregnancy that, if left undisturbed, would result in a live birth. In their definition, any non-miscarrying fetus or embryo would be considered a viable baby because it would live if it were just left alone to gestate, even if that gestation needed to occur somewhere outside of the womb of the pregnant person herself.

Allowing viability to be defined at 22-week gestation doesn’t just help avoid a constitutional crisis over Roe v. Wade if a “pain ban” ever does get challenged in the Supreme Court, it actually has scientific justification and doesn’t completely redefine the meaning of the term.

Maybe in just this one case, anti-abortion activists actually do have it right.

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About the Author

Robin Marty is a freelance writer and speaker and the author of CROW AFTER ROE, a book outlining the blueprint to end abortion one red state at a time. Marty’s articles have appeared at Cosmopolitan.com, Politico, The Guardian, and other publications, and she is a Women’s Media Center SheSource Expert on Reproductive Rights and Politics. Follow her: @robinmarty